An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1423 NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 10 CRS 237504 AMY MOORE CLOER
Appeal by defendant from judgment entered 24 May 2013 by
Judge Richard L. Doughton in Mecklenburg County Superior Court.
Heard in the Court of Appeals 24 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant- appellant.
HUNTER, JR., Robert N., Judge.
Amy Moore Cloer (“Defendant”) appeals from a judgment for
Driving While Impaired (“DWI”). Defendant argues that
Magistrate Peters violated her constitutional rights and her
statutory rights under N.C. Gen. Stat. §§ 15A-501, 15A-511, and
15A-954 (2013) during her initial appearance at the Mecklenburg
County Jail. Specifically, Defendant contends: (1) that -2- Magistrate Peters violated N.C. Gen. Stat. § 15A-511 when she
did not inform Defendant of her pretrial rights; (2) that
Magistrate Peters did not provide any written findings for
setting a secured bond in violation of N.C. Gen. Stat. § 15A-534
(2013) and the Twenty-Sixth Judicial District’s Bail Policy; and
(3) that Defendant’s lengthy pre-trial confinement prevented her
from meeting with friends and family members who could have
observed her condition during her pretrial confinement. Thus,
Defendant contends that the magistrate’s errors were prejudicial
to her case, warranting a dismissal of the DWI judgment. After
review, we find no prejudicial error.
I. Facts & Procedural History
On 4 August 2010, at 11:30 p.m., Officer Jeffery Baucom
(“Officer Baucom”) of the Charlotte-Mecklenburg Police
Department received a dispatch call to respond to a traffic
accident at the intersection of 7th Street and North Tryon
Street in Mecklenburg County. At the time Officer Baucom
received the call, he was less than twenty-five yards from the
scene of the accident. Officer Baucom also heard the accident
when it occurred and he responded on foot. Once Officer Baucom
arrived at the scene, he called for emergency personnel
assistance and started his investigation of the accident scene. -3- During his investigation, Officer Baucom spoke with Defendant,
the driver of one of the vehicles involved in the accident.
While speaking with Defendant, Officer Baucom detected a
moderate smell of alcohol coming from Defendant and noticed
Defendant’s red, glassy eyes. Upon further inquiry, Defendant
told Officer Baucom that she had been drinking earlier that day.
After Officer Baucom and the other responding officers
secured the accident site, Officer Baucom conducted field
sobriety tests on Defendant. Officer Baucom administered the
horizontal gaze nystagmus test, the one-leg stand test, and the
walk-and-turn test. During each test, Defendant exhibited signs
of impairment and Officer Baucom determined that she was
impaired by alcohol. Officer Baucom placed Defendant under
arrest for DWI and transported her to the Mecklenburg County
Intake Center. Before her processing took place, Defendant was
allowed to keep her credit card in order to post her bond.
At 12:56 a.m., Officer Baucom advised Defendant of her
rights before administering an intoxilyzer test. Pursuant to
N.C. Gen. Stat. § 20-16.2 (2013), Officer Baucom advised
Defendant of her right to call an attorney and her right to call
a witness to view the intoxilyzer test. Defendant signed an
intoxilyzer rights form and waived her statutory rights. -4- Officer Baucom administered two intoxilyzer tests of Defendant,
and the results of the two tests revealed that Defendant’s blood
alcohol level was 0.10.
Thereafter, Officer Baucom read Defendant her Miranda
rights. Defendant signed the Miranda rights form indicating
that she understood her rights at 1:23 a.m. After signing the
form, Defendant agreed to answer questions about the accident.
During questioning, Defendant stated that she started drinking
at 1:00 p.m. and that she consumed five beers and one or two
alcoholic beverages. When asked if she was under the influence
of an alcoholic beverage, Defendant responded, “I guess so.”
At 1:31 a.m., intake officers moved Defendant to a waiting
area where telephones were available to her. After a thirty-
minute wait, Magistrate Peters set Defendant’s conditions for
release. The conditions for release allowed Defendant to secure
release in one of two ways: she could post a $500 secured bond
or she could obtain custody release to a sober licensed adult.
After the conditions for release were set, Magistrate
Peters read Defendant the provisions of an Implied Consent
Offense Notice form pursuant to N.C. Gen. Stat. § 20-38.4
(2013). The form required Magistrate Peters to inform Defendant
of her rights to have witnesses observe her condition in jail, -5- to have an additional chemical test administered, and to list
people that she wished to contact. Defendant provided names and
numbers of three persons that she wanted to contact, but the
record does not show that Defendant contacted any of these
persons. Magistrate Peters and Defendant both signed the
Implied Consent form at 2:33 a.m.
After she signed the form, Defendant waited in jail
reception for thirty-minutes before re-entering the magistrate’s
chambers. During her wait, Defendant once again had access to
telephones. At 3:03 a.m., Defendant met with Magistrate Peters
a second time, but it is unclear from the record what transpired
during this short encounter. After her second appearance,
Defendant entered jail reception at 3:16 a.m.
At 4:44 a.m., Defendant received a receipt for using the
Touch Pay machine to pay her bond. Though the receipt read 3:44
a.m., Deputy James Ingram (“Deputy Ingram”), keeper of records
for the Mecklenburg County Jail, testified at trial that the
receipt was based on Central Time because the machine was owned
and operated by a company based in Texas. The jail’s finance
department received the secured bond amount of $500 at 5:31 a.m.
At 6:42 a.m., jail staff notified Defendant that she met
the conditions of her release. Due to the jail’s shift change -6- at 6:40 a.m., Defendant did not arrive to the release post until
7:17 a.m. Officers released Defendant from custody at 7:22 a.m.
Although it is unclear at what time Defendant’s custody started
at the Mecklenburg County Jail, Defendant was in pretrial
confinement for a timespan between six hours and thirty-minutes
to eight hours.
On 17 February 2011, the Mecklenburg County District Court
found Defendant guilty of DWI. After appealing to Mecklenburg
County Superior Court, Defendant filed a motion to dismiss the
DWI charge, alleging that Magistrate Peters violated her initial
appearance rights. During her motion hearing on 23 May 2013,
Defendant testified that she was told to remain seated and quiet
while waiting to speak with Magistrate Peters. Defendant stated
that during her appearance, Magistrate Peters informed Defendant
of her DWI charge and required Defendant to post a $500 bond.
She also testified that after speaking with Magistrate Peters,
she was moved to a smaller room with access to telephones.
Defendant stated that she was nervous and that she felt like she
needed to stay seated and quiet because officers took an
individual away from the holding area after that person raised
concerns about the telephones not working properly. Defendant
testified that she tried to use the telephones but she was -7- unable to hear who she called. Deputy Ingram testified that DWI
offenders are allowed to use telephones in the waiting area
before and after their initial appearance. Based on the
foregoing evidence, the superior court denied Defendant’s motion
to dismiss.
Defendant’s trial began on 23 May 2013 in Mecklenburg
County Superior Court. At trial, Defendant testified that she
tried to use the telephones in the jail reception area but she
was unable to contact anyone because the phones were not working
properly. Defendant also testified that she attempted to use
her credit card to pay her bond around 3:00 a.m., but the
machine was temporarily shutdown. Defendant further testified
that she knew about bail bondsmen, but she did not attempt to
contact a bondsman in order to secure her release. After trial,
the jury reached a unanimous verdict, finding Defendant guilty
of DWI. Judge Doughton sentenced Defendant to thirty days in
jail but suspended the sentence, placing Defendant on supervised
probation for twelve months. Defendant filed timely written
notice of appeal on 28 May 2013.
II. Jurisdiction & Standard of Review -8- As Defendant appeals from the final judgment of a superior
court, an appeal lies of right to this Court pursuant to N.C.
Gen. Stat. § 7A-27(b) (2013).
On appeal from a trial court’s denial of a motion to
dismiss:
the standard of review is whether there is competent evidence to support the findings and the conclusions. If there is a conflict between the state’s evidence and defendant’s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.
State v. Lewis, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351
(2001) (internal quotation marks and citations omitted). “If
the findings of the trial court are supported by competent
evidence, they are binding on the appellate courts.” State v.
Bright, 301 N.C. 243, 254, 271 S.E.2d 368, 375 (1980). “Our
task is not to re-weigh the evidence before the trial court but
to uphold the trial court’s findings so long as they are
supported by competent evidence, even if there also exists
evidence to the contrary.” State v. Daniel, 208 N.C. App. 364,
369, 702 S.E.2d 306, 309 (2010).
III. Analysis
A. Defendant’s Right to Communicate with Counsel and Witnesses -9- Defendant argues the trial court erred by denying her
motion to dismiss because the magistrate failed to inform
Defendant of her rights to communicate with counsel and friends
pursuant to N.C. Gen. Stat. § 15A-511(b). We disagree.
N.C. Gen. Stat. § 15A-511(b) provides: “The magistrate must
inform the defendant of: (1) The charges against him; (2) His
right to communicate with counsel and friends; and (3) The
general circumstances under which he may secure release under
the provisions of Article 26, Bail.”
In its order denying Defendant’s motion to dismiss, the
trial court made the finding that “the defendant signed the
Implied Consent Offense Notice and was notified of her charges
and her rights to obtain her own chemical test and to have
witnesses present at the jail.” Provisions 4 and 5 of the
Implied Consent Offense Notice state:
4. The [magistrate] informed the defendant in writing of the established procedure to have others appear at the jail to observe the defendant’s condition or to administer an additional chemical analysis.
5. The [magistrate] required the defendant to list all persons the defendant wishes to contact and telephone numbers on a copy of this form. -10- Defendant signed the form, indicating that she understood those
rights. Defendant also listed three persons that she wanted to
contact on the Implied Consent form.
In State v. Haas, 131 N.C. App. 113, 505 S.E.2d 311 (1998),
the defendant argued that he was prejudiced because the issuing
magistrate did not inform him of his right to contact family
members and friends. Id. at 115, 505 S.E.2d at 312. At trial,
the defendant testified that the magistrate informed him of his
access to a telephone, and that he signed a form certifying his
opportunity to contact witnesses. Id. at 116, 505 S.E.2d at
313. This Court held that the trial court’s finding — that the
magistrate did not commit an error — provided indirect evidence
that the magistrate informed the defendant of his right to
communicate with counsel and friends. Id.
Here, as in Haas, Defendant signed a form notifying her of
her right to contact witnesses. Based on Defendant’s entries of
persons to contact and her signature on the Implied Consent
form, Defendant had knowledge of her right to contact witnesses.
For the foregoing reasons, the Implied Consent form put
Defendant on notice of her pretrial rights to communicate with
counsel and friends.
B. Pre-trial Release Procedures -11- Defendant argues that the trial court erred when it denied
her motion to dismiss because the magistrate failed to make
written findings and failed to follow the statutory pre-trial
release procedures. We agree that the magistrate failed to
follow the statutory procedures, but we do not find that the
errors constitute irreparable prejudice.
A person charged with a noncapital offense, “must have
conditions of pretrial release determined, in accordance with
G.S. 15A-534.” N.C. Gen. Stat. § 15A-533(b) (2013). According
to N.C. Gen. Stat. § 15A-534, a magistrate must impose one of
five conditions:
(1) Release the defendant on his written promise to appear.
(2) Release the defendant upon his execution of an unsecured appearance bond in an amount specified by the judicial official.
(3) Place the defendant in the custody of a designated person or organization agreeing to supervise him.
(4) Require the execution of an appearance bond in a specified amount secured by a cash deposit . . . by a mortgage . . . or by at least one solvent surety.
(5) House arrest with electronic monitoring.
The magistrate must release the defendant under conditions (1),
(2), or (3) “unless he determines that such release will not -12- reasonably assure the appearance of the defendant as required;
will pose a danger of injury to any person; or is likely to
result in destruction of evidence, subornation of perjury, or
intimidation of potential witnesses.” N.C. Gen. Stat. § 15A-
534(b). When a magistrate determines which condition must be
imposed, he must follow the procedure outlined in N.C. Gen.
Stat. § 15A-534(c). The magistrate:
must, on the basis of available information, take into account the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release.
N.C. Gen. Stat. § 15A-534(c) (2013).
If the magistrate determines that a defendant poses a
danger to the public, then he must impose condition (4) or (5).
N.C. Gen. Stat. § 15A-534(d2)(1). If the magistrate imposes
condition (4) or (5), the magistrate “must record the reasons
for so doing in writing to the extent provided in the policies
or requirements issued by the senior resident superior court -13- judge pursuant to G.S. 15A-535(a).” N.C. Gen. Stat. § 15A-
534(b) (emphasis added).
N.C. Gen. Stat. § 15A-535(a) regulates the setting of bail
policies for each judicial district. The bail policy in
Mecklenburg County requires magistrates to place a letter code
justifying the requirement of a secured bond. Defendant’s
condition of release order does not contain any letter code
justification for imposing the secured bond in violation of the
bail policy.
In the present case, the magistrate set two conditions for
Defendant’s release: (1) custody release to a sober licensed
adult or (2) a secured bond in the amount of $500. Since
Magistrate Peters imposed a secured bond, she had to determine
that Defendant was a flight risk, that Defendant would destroy
evidence, or that Defendant posed a danger to the public. See
N.C. Gen. Stat. § 15A-534(b). There is no evidence in the
record that the magistrate made such a determination. Since the
magistrate failed to record the reason for setting Defendant’s
bond in writing, the magistrate violated N.C. Gen. Stat. § 15A-
534 and Mecklenburg County’s bail policy. -14- Defendant argues that the magistrate’s statutory violations
caused irreparable prejudice and she requests dismissal of the
DWI charge and judgment. We disagree.
“Before a motion to dismiss should be granted . . . it must
appear that the statutory violation caused irreparable prejudice
to the preparation of defendant’s case.” State v. Rasmussen,
158 N.C. App. 544, 549–50, 582 S.E.2d 44, 50 (2003) (internal
quotation marks and citations omitted). “[P]rejudice will not
be assumed to accompany a violation of defendant’s statutory
rights, but rather, defendant must make a showing that he was
prejudiced in order to gain relief.” State v. Knoll, 322 N.C.
535, 545, 369 S.E.2d 558, 564 (1988).
In State v. Gilbert, 85 N.C. App. 594, 355 S.E.2d 261
(1987), the magistrate informed the defendant of his right to an
independent chemical test, but the defendant chose not to seek a
second test. Id. at 597, 355 S.E.2d at 263. Moreover, the
defendant’s brother visited the defendant shortly after his
intoxilyzer test. Id. at 597, 355 S.E.2d at 264. The Wake
County Superior Court dismissed the DWI charge against the
defendant because the defendant alleged that the magistrate’s
failure to inform him of his rights warranted a dismissal of the
charge. Id. at 594–95, 355 S.E.2d at 262. The State appealed -15- and this Court held that the defendant failed to show prejudice
because the defendant knew of his right to obtain an independent
chemical test and “there [was] nothing in the record to show
that defendant requested, or was denied, access to anyone.” Id.
at 597, 355 S.E.2d at 264.
In State v. Labinski, 188 N.C. App. 120, 654 S.E.2d 740
(2008), the defendant alleged that the magistrate denied her
access to family and friends during a critical time of her
pretrial confinement. Id. at 125, 654 S.E.2d at 745. The
defendant was informed of her right to have witnesses present at
her intoxilyzer test, but she did not request a witness even
though four of her friends were present at the jail. Id. at
128, 654 S.E.2d at 745. Additionally, the defendant saw that
her friends were present at the jail, but the defendant did not
ask to speak with them. Id. The defendant also had access to
telephones and she made phone calls while waiting for her
release. Id. This Court found that the magistrate violated the
defendant’s rights because there was no evidence that she would
be a danger to the public if she were released subject to
conditions other than a secured bond. Id. at 127, 654 S.E.2d at
744–45. However, we held that the magistrate’s error did not
rise to the level of irreparable prejudice because the defendant -16- had access to witnesses but she chose not to exercise that
right. Id. at 128, 654 S.E.2d at 745.
Similar to Gilbert, in this case, Magistrate Peters
notified Defendant of her right to have an additional
intoxilyzer test performed. Defendant signed the implied
consent form, indicating her knowledge of her rights, but there
is no evidence that Defendant sought to have another test
administered.
Similar to Labinski, Defendant had access to telephones
before and after she met with the magistrate, and she had the
opportunity to contact witnesses. Labinski, 188 N.C. App. at
122, 654 S.E.2d at 743. Even though there was evidence that the
phones were not working properly, there is no evidence that the
Mecklenburg County Jail staff or Magistrate Peters prevented her
from calling anyone and no evidence that the Jail staff caused
the phones to work improperly.
Accordingly, Defendant was not irreparably prejudiced in
the preparation of her defense. The observations of witnesses
at the jail would not be likely to outweigh the evidence at
trial in favor of conviction. Defendant admitted to Officer
Baucom that she had started drinking around 1:00 p.m. that day
and Defendant failed Officer Baucom’s field sobriety tests that -17- he administered at the accident scene. When Officer Baucom
asked Defendant if she was under the influence of alcohol,
Defendant stated, “I guess so.” Intoxilyzer tests revealed her
blood alcohol concentration to be 0.10, which is above the legal
limit. N.C. Gen. Stat. § 20-138.1(a)(2) (2013). This evidence
is sufficient to show Defendant’s impairment and to support a
conviction for DWI. Thus, Defendant was not irreparably
prejudiced by the magistrate’s statutory violations and the
inability to contact witnesses to observe her condition in jail.
IV. Conclusion
For the foregoing reasons, the judgment of the trial court
is
AFFIRMED.
Judge STROUD concurs in a separate opinion.
Judge DILLON concurs.
Report per Rule 30(e). NO. COA13-1423
NORTH CAROLINA COURT OF APPEALS
v. Mecklenburg County No. 10CRS237504 AMY CLOER, Defendant.
STROUD, Judge, concurring.
While I agree with the majority’s decision, I write
separately to further clarify why I find the case law cited by
the majority distinguishable from the present case, although the
result remains the same. The majority relies heavily on State
v. Labinski, in which the magistrate “violated defendant’s
statutory right to pretrial release” when he set a secured bond
without evidence to support such a determination, 188 N.C. App.
120, 126-27, 654 S.E.2d 740, 744-45, disc. review denied, 362
N.C. 367, 661 S.E.2d 889 (2008), just as the magistrate here
did. Yet in Labinski, this Court determined that the defendant
was not denied of her opportunity to exercise her pre-trial
rights, and thus there was no prejudice resulting from the
magistrate’s error. Id. at 128, 654 S.E.2d at 745 (The
“defendant was informed of her right to have a witness present
for the intoxilyzer test but did not request a witness, even -2- though four of her friends were in fact present at the PCDC at
the proper time and could have witnessed the test. Defendant’s
four friends were present at the PCDC by the time defendant left
the intoxilyzer room and they remained until her release.
Defendant was able to see her friends and they could see her,
but she did not ask to speak to them or that they be permitted
to come to her. Defendant also had full access to a telephone
and in fact made several phone calls from the PCDC.”) I do not
agree that defendant here was afforded the same opportunity as
in Labinski. Contrast id. In Labinski, as a practical matter,
the defendant lost her opportunity only due to her own failure
to ask for her friends who were actually present. See id.
Here, defendant lost her opportunity to contact someone, but the
loss of opportunity was not from her own inaction, but
apparently from the functioning of the jail phone.
Regarding defendant’s attempt to make phone calls, the
majority notes “there was evidence that the phones were not
working properly, [but] there is no evidence that the
Mecklenburg County Jail staff or Magistrate Peters prevented her
from calling anyone and no evidence that the Jail staff caused
the phones to work improperly.” Although this statement may be
correct, if the phones were not working, for whatever reason, -3- then defendant was denied the opportunity to make phone calls.1
When an arrestee is given the right to use a jail phone to call
for help, that phone should operate in a reasonable and normal
manner and give the arrestee a realistic opportunity to speak
with the person they are attempting to contact. Furthermore,
unlike the Labinski case, and perhaps due to the non-working
phones, defendant here did not have anyone present who could
observe her. Contrast id. The defendant in Labinski actually
saw that her friends were at the jail but chose not to speak to
them or ask that they come to her despite the fact that she had
been informed of her rights. Id.
However, I do concur that the magistrate’s violation of
North Carolina General Statute § 15A–534 is not what caused
defendant to lose her opportunity to exercise her rights. This
case can be contrasted with State v. Knoll, wherein three
similar cases were consolidated. 322 N.C. 535, 369 S.E.2d 558
(1988). In the three Knoll cases, the magistrates themselves
1 Actually, defendant’s evidence indicated that the phone which defendant used at the jail was set up in such a manner that if an arrestee makes a call to another person’s cell phone, the arrestee will not be able to hear the person who answered on the cell phone; in other words, an arrestee would be able to call only a person who has a landline phone, despite the fact than many people have now ceased to use landline phones. If defendant’s claims as to the inability to call a cell phone number from the jail is correct, this technological issue should be corrected. -4- actually denied the defendants the opportunity to exercise their
rights: (1) The magistrate denied Mr. Knoll’s father the right
to come pick up his son, the defendant, for approximately six
hours. Id. at 537-38, 369 S.E.2d at 560. (2) The magistrate
would not allow two people present to take the defendant, Mr.
Warren, nor would he allow them to post the defendant’s bond
which resulted in the defendant being in custody approximately
eight to nine hours longer than necessary. Id. at 539-40, 369
S.E.2d at 561-62. (3) The magistrate would not allow the
defendant, Mr. Hicks, to post his own bond, despite the fact
that Mr. Hicks could have then taken a taxi home to his wife and
been with her within approximately 30 minutes. Id. at 541-42,
369 S.E.2d at 562.
Our Supreme Court stated:
Each defendant’s confinement in jail indeed came during the crucial period in which he could have gathered evidence in his behalf by having friends and family observe him and form opinions as to his condition following arrest. This opportunity to gather evidence and to prepare a case in his own defense was lost to each defendant as a direct result of a lack of information during processing as to numerous important rights and because of the commitment to jail. The lost opportunities, in all three cases, to secure independent proof of sobriety, and the lost chance, in one of the cases, to secure a second test for blood alcohol content constitute prejudice to the -5- defendants in these cases.
322 N.C. at 547-48, 369 S.E.2d at 565 (emphasis added).
Here, unlike in Knoll, see id. at 537-42, 369 S.E.2d at
560-62, it was not the magistrate’s violation that caused
defendant to lose her rights as she was permitted to make her
phone calls, but the loss of opportunity was caused by whatever
entity was responsible for the phones, if the phones were
unlikely to permit defendant to be able contact anyone.
However, defendant has not made any argument as to a violation
of her rights by any law enforcement agency. Any prejudice in
defendant’s case was not the result of the magistrate’s errors,
and this is the only issue she raises on appeal, so I too must
find no error.